CT. OF APP.]

premises and dropping the old licence is a mere device for depriving the owners of the Five Alls of the rights given them for their protection by the Act of Parliament. We submit that in every case in which the holder of a licence applies to the justices for a new licence in the licensing district and it is evident to the justices that in substance the object of the applicant is to remove his business to other premises, then the justices ought to refuse his application unless proper notice has been given to the owner of the old premises, the licence of which the holder intends to allow to drop. It is the duty of the justices to find out the real object of the application made to them. Here the justices knew that the real object of the applicant was in effect to remove his business. An offer to surrender an old licence if a new licence is granted, or an acceptance of a condition of that nature imposed by justices, is equivalent to an application for the removal of a licence. In the case of a licence for the sale of beer, it is necessary that the applicant be the bona fide resident occupier of the premises in respect of which the licence is sought: (see the Beerhouse Act 1840 (3 & 4 Vict. c. 61), s. 1.) The justices therefore were either granting what they knew to be a removal of a licence, or else they were granting to Laceby two licences for the sale of beer in respect of two sets of premises, knowing that he could not possibly be the resident occupier of both premises at the same time. As Laceby had already obtained a renewal in respect of the Five Alls, the licence of that house was good for more than twelve months. As to form, the licence must be treated as an entirety, and if part of it is bad it is all bad.

Bosanquet, QC. replied.

SMITH, L.J.-I think that the Divisional Court was right in making absolute the rule which had been obtained for a certiorari to bring up and quash the order made by the justices, because in my opinion that order was in substance an order for the removal of Laceby's licence within sect. 50 of the Licensing Act 1872. Laceby was the tenant of a public-house known as the Five Alls, and since 1891 he had held, besides the licence for that house, an off licence in respect of the cellarage of the house next door, known as No. 2, Abercrombie-street, Battersea. At the general annual licensing meeting held in March 1887 he applied for and obtained a renewal of these two licences, namely, for the Five Alls, and for the cellarage of No. 2, Abercrombie-street. He then applied for an off licence for the whole of the house, No. 2, Abercrombie-street. The justices

thereupon said that before they would entertain his application for this last licence, they wished to know whether Laceby would be willing to give up his licence for the Five Alls, and confine his business entirely to No. 2, Abercrombie-street, in the event of his application being granted. In substance they asked him whether he would remove his entire business to No. 2, Abercrombiestreet, if they granted him a licence for the whole of the house. Laceby agreed to the justices' proposal. Then the justices, after an adjournment for a few days in order to view the premises, granted to Laceby an off licence for the whole of the house No. 2, Abercrombie-street, on condition of his undertaking to cease forthwith carrying on business at the Five Alls. I do not stop to

[CT. OF APP.

inquire the exact form of words in which the order of the justices was drawn up. The order was in substance for the removal of Laceby's licence with his consent from the Five Alls to No. 2, Abercrombie-street. In my opinion when the holder of a licence in a licensing district applies for a new licence for other premises situated in that licensing district, with the determination of abandoning his business at the old premises and carrying on business at the new premises, that is an application for the removal of a licence within the meaning of sect. 50 of the Licensing Act 1872. In such a case as that the owner of the old premises must be served with notice of the intended application as provided by the section before the application can be granted. That is in substance what has occurred in the present case, and as the "owners " of the Five Alls were not served with notice of the intended application the order of the justices was bad. As part of the justices' order was made without jurisdiction the whole order is bad. The appeal must be dismissed.

CHITTY, L.J.-I am of the same opinion. It seems to me that the facts bring the present case within the provisions of sect. 50. That section has never been repealed. It was argued that the effect of subsequent legislation has been to make removals of licences unnecessary, and so to reduce the effect of the section. But the section still stands unrepealed, and we must give effect to it. Now, after obtaining at the licensing sessions a renewal of his licences for the Five Alls and for the cellarage of No. 2, Abercrombie-street, Laceby applied for a third licence, that is to say, a licence for the whole of the premises of No. 2, Abercrombie-street. The justices declined to entertain that application except upon a certain undertaking being given by the applicant. The undertaking was given, and later after an adjournment for the purpose of viewing the premises, they heard the application which was then made to them in this form, viz., that a new licence might be granted for No. 2, Abercrombie-street, on the applicant agreeing to give up the existing licence for the Five Alls. The applicant might have refused the proposal of the magistrates, but he did not do so. The magistrates then granted to Laceby his application for a licence for No. 2, Abercrombiestreet, on his surrendering the licence of the Five Alls, and undertaking to cease forthwith the sale of beer, wine, and spirits, on those premises. In substance that seems to me to have been an application and an order for the removal of the licence of the Five Alls to No. 2, Abercrombiestreet. As to the other point, I agree that the order of the justices is one entire order, and as part of it was made without jurisdiction, the whole of it must be quashed.

COLLINS, L.J.-I am of the same opinion, and have nothing to add. Appeal dismissed.

Solicitor for the prosecutors, Wellington Taylor. Solicitors for the justices, Corsellis, Mossop, and Berney.

Solicitors for Laceby, W. W. Young and Son.

CT. OF APP.]

In the case of a Parliamentary election petition, in which the petitioner merely claims the seat for an unsuccessful candidate, alleging that he had a majority of lawful votes, the delivery of particulars is governed exclusively by rule 7 of the Parliamentary Election Petition Rules 1868, and, therefore, no order can be obtained under rule 6.

Munro v. Balfour (67 L. T. Rep. 526; (1893) 1 Q. B. 113) affirmed.

THIS was an appeal from an order of Lawrance, J. at chambers.

At the recent Parliamentary election for the city of York, at which the candidates were Lord Charles Beresford and Sir Christopher Furness, Lord Charles Beresford was returned as having been elected by a majority of eleven votes.

Sir Christopher Furness presented a petition claiming the seat for himself, alleging that he had a majority of lawful votes.

There was no allegation that the election was void, and all that the petitioner asked for was a scrutiny and recount.

Paragraph 6 of the petition was as follows:

And your petitioner further says that certain persons voted at the said election who were guilty of corrupt and illegal practices, illegal payment, illegal employment, and illegal hiring at the said election, and that the votes of the said persons are void, and ought to be struck off the poll.

The respondent thereupon took out a summons for particulars, upon which it was ordered by Lawrance, J. at chambers that the petitioner, within four days of the order, soould deliver to the respondent particulars of the corrupt and illegal practices mentioned in paragraph 6 of the petition.

Against this order the petitioner appealed.

The Parliamentary Election Petition Rules 1868, which were male pursuant to the Parlia mentary Elections Act 1868 (31 & 32 Vict. c. 125), provide as follows:

Rule 2. An election petition shall contain the following statements: (2) It shall state the holding aud result of the election, and shall briefly state the facts and grounds relied on to sustain the prayer.

Rule 6. Evidence need not be stated in the petition, but the court or a judge my order such particulars as inay be necessary to prevent surprise and unnecessary expense, and to insure a fair and effectual trial in the same way as in ordinary proceedings in the Court of Common Pleas, and upon such terms as to costs and o herwise as may be ordered.

Rule 7. When a petitioner claims the seat for an unsuccessful candidate, alleging that he had a majority of lawful votes, the party complaining of or defending the election or return shall, six days before the day appointed for trial, deliver to the master and also at the address, if any, given by the petitioner and respondent, as the case may be, a list of the votes intended to be objected to and of the heads of objection to each such (a) Keported by E. MANLEY SMITH, Esq., Barrister-at-Law.

[CT. OF APP.

vote, and the master shall allow inspection and office copies of such lists to all parties concerned; and no evidence shall be given against the validity of any vote nor upon any head of objection not specified in the list, except by leave of the court or a judge, upon such terms as to amendment of the list, postponement of the inquiry and payment of costs, as may be ordered.

Dickens, Q.C. (Willoughby Williams with him) for the petitioner. The learned judge had no jurisdiction to make this order. The order would be a good one if he had jurisdiction to order particulars under rule 6. But that rule has no application to the case of any petition to which rule 7 applies. When rule 7 is applicable to any petition, it excludes the application of rule 6. That has been so laid down by a divisional court consisting of Lord Coleridge, C.J. and Wills, J., and it is submitted that that decision was right :

Munro v. Balfour, 67 L. T. Rep. 526; (1893) 1 Q. B.

113.

The present petition asks for a scrutiny and recount, and claims the seat for the petitioner as having a majority of lawful votes. Nothing more is asked for, and it is clearly a petition to which rule 7 applies. I submit that no particulars can be ordered or need be given here, except under the provisions of rule 7. He referred to

Elkins v. Onslow (the Guildford Petition), 19 L. T
Rep. 528.

Jelf, Q.C. (Lewis Coward with him) for the respondent. The learned judge had jurisdiction to make the order. Paragraph 6 of this petition cou'd not be framed in more vague and general terms. It includes every possible point on which a scrutiny can be of benefit to the petitioner. It really gives no information to the respondent. Bruce, J. has said that "it was the duty of the court to see that such charges should be formulated in definite terms":

The Lancaster Division case, 5 O'M. & H. 39, at p. 42.

This petition does not comply with rule 2 of the Election Petition Rules 1868, and "briefly state the facts and grounds relied on." The same principle of particularity, within certain limits, applies to a petition for a scrutiny as much as to any other kind of petition. An omnibus petition, under which any and every offence can be proved, is not sufficient. The respondent wishes to know the nature of the alleged corrupt and illegal practices; he does not ask for minute details of names of persons, &c. He desires an intermediate kind of particulars, just such as would make the petition more specific than it is. In Munro v. Balfour (ubi sup.) it was the detailed particulars that the court refusd to order, but general particulars were ordered in that case. Rule 7 does not deal at all with particulars; it ouly deals with lists of votes, and does not apply to the present case. Rule 6 is intended to meet such a case as the present, and to compel the petitioner to state with some particularity the classes of complaints which he makes.

Dickens, Q.C. in reply.

SMITH, L.J.-The question in this case arises upon a petition presented against the election of the respondent at the recent parliamentary election for the city of York. The petitioner does not seek to have the election declared void; he asks merely for a scrutiny and a recount, in

CT. OF APP.]

order that it may be ascertained in whose favour the majority of lawful votes was given. The petition is drawn up in paragraphs, and seems to me to be good in form. The respondent seeks to obtain particulars of paragraph 6 on the ground of its alleged vagueness. According to the practice with regard to election petitions which has existed for many years that paragraph does not seem to me to be at all too general. It is common form to set out in a petition, after the necessary averments, the reasons on which it is based, such as bribery, treating, or undue influence. Now, under the Parliamentary Elections Act 1868, the Parliamentary Election Petition Rules of 1868 were drawn up, and rule 6 is in the following words: [His Lordship read it.] That rule applies to the case of a petition in which the seat is not claimed. Rule 7 applies to a case "when a petitioner claims the seat for an unsuccessful candidate, alleging that he had a majority of lawful votes." That is the case here. All that is asked for in this petition is a scrutiny, i.e., that votes unlawfully given may be struck off the poll, and a recount with the view of showing that the unsuccessful candidate is entitled to the seat. Rule 7 deals solely with petitions of this class. It is an express rule that in such a case as this the petitioners and the respondent shall, six days before the day appointed for trial, exchange lists of the votes intended to be objected to. The rule clearly applies to the present case, and, in my opinion, is exclusive of rule 6, which does not apply to a petition in which a scrutiny and a recount is all that is asked for. I am fortified in my opinion by the decision of the Queen's Bench Division in Munro v. Balfour (67 L. T. Rep. 526; (1893) 1 Q. B. 113). The very point ra sed here was there decided by Lord Coleridge, C.J. and Wills, J. In that case, after allegations that the election was void in conɛequence of various corrupt and illegal practices on the part of the agent of the sitting member, the petition went on to claim the seat for the petitioner upon a scrutiny. As regards the first part of the petition the court held that under rule 6, which I have just read, the respondent was entitled to such particulars as might be necessary to prevent surprise and unnecessary expense, and to insure a fair and effectual trial; but as regards the other part of the petition, in which the seat was claimed on a scrutiny, the court held that it had no jurisdiction to make any order under rule 6 because the operation of that rule is excluded by rule 7 from cases to which rule 7 applies. I entirely agree with the judgment of the Divisional Court in that case. I think that Lawrence, J. had no jurisdiction here to order the petitioner to give particulars within four days of the order, and the appeal must therefore be allowed.

CHITTY, L.J.-I am of the same opinion. The petition asks for a scrutiny and recount and nothing more. It plainly falls, therefore, within the provisions of rule 7. Now the learned judge at chambers acted upon rule 6 and ordered the petitioner to give particulars of the corrupt and illegal practices mentioned in paragraph 6 of the petition within four days of the order. If we upheld that order, it seems to me that we should have to overrule the case of Munro v. Balfour (67 L. T. Rep. 526; (1893) 1 Q. B. 113). But that case was in my opinion rightly decided.

[CT. OF APP.

Rule 7 of the Parliamentary Election Petition Rules 1868 deals with a petition such as that which is now before us; and when a petition merely claims the seat for an unsuccessful candidate on the ground that he had a majority of lawful votes, I think that rule 7 applies exclusively of rule 6, so that no particulars can be obtained except under rule 7. It seems that no order is necessary for the delivery of the list of votes mentioned in this rule, but that the rule applies automatically. Now an attempt was made to distinguish Munro v. Balfour (ubi sup.) from the present case. It was urged on behalf of the respondent that what he desired to obtain was not an order for particulars under rule 6, but a definite statement of the nature and character of the charges made by the petitioner in paragraph 6 of the petition. That is to say, he wanted not particulars, but something like particulars; something intermediate between the statements made in the petition and particulars properly so called, such as are referred to in rule 6. I cannot agree with his view of the case. The question here is exactly the same as that which was raised in Munro v. Balfour (ubi sup.), which in my opinion, as I have already said, was rightly decided. I think it is material to consider the plain object of rule 7 that, in cases like the present where the seat is claimed for the petitioner on the ground that he has a majority of lawful votes, the petitioner and the respondent should be put on just the same footing, so that no advantage by way of particulars should be given to either side until lists of the votes objected to have been exchanged six days before the trial. The parties are to be put on equal terms. Now, if we upheld the order of the learned judge at chambers, we should be placing the respondent in a position to a certain extent better than the petitioner. Though, after all, the respondent would not gain any real advantage by an order that the petitioner should deliver the heads of the corrupt and illegal practices complained of because if the petitioner did send him a written list of these matters, copied out of the Act of Parliament, the respondent would not gain any information which would narrow the scope of the inquiry.

COLLINS, L.J.-I am of the same opinion. The point has been decided in Munro v. Balfour (67 L. T. Rep 526; (1893) 1 Q. B. 113), and as no attempt has really been made on behalf of the respondent to impugn the decision of the Queen's Bench Division in that case, I feel justified in dealing with it as a binding authority. The same difficulties were there raised as have been raised before us. It was pointed out by the court, and made the ground of their decision, that rule 7 is exclusive of rule 6 and that with regard to a claim for a scrutiny and recount no particulars can be obtained except those provided for by rule 7. The appeal should therefore be allowed. Appeal allowed.

Solicitors for the petitioner, H. P. and J. H. Cobb.

Solicitors for the respondent, Sharpe, Parker, Pritchards, and Barham.

Wednesday, March 2, 1898.

(Before SMITH, CHITTY, and COLLINS, L.JJ.) THE ASSESSMENT COMMITTEE OF THE STOCKPORT UNION (apps.) v. THE LONDON AND NORTH-WESTERN RAILWAY COMPANY (resps.). (a)

APPEAL FROM THE QUEEN'S BENCH DIVISION. Poor rate-Railway lines at station-Station appurtenances Running lines or sidings. In addition to the four main lines passing through a railway-station, certain other lines were made at the station and used, some for the purposes of through traffic when the main lines were occupied, or likely to be occupied, and others for the purposes of carrying goods into the railway company's warehouse and into a private coal yard adjoining the station, and for the making up and departure of local passenger trains. These lines were also used for the standing of empty trains without engines.

Upon a case stated by a Court of Quarter Sessions for the opinion of the High Court, the question being whether these lines were to be rated as running lines or sidings:

Held, that the primary and principal purpose for which the lines in question were made and used was the carrying of passenger and goods traffic, and that they were running lines and should be rated accordingly.

Judgment of the Queen's Bench Division (ante, p. 199; 77 L. T. Rep. 244) affirmed.

THIS was an appeal from a judgment of the Queen's Bench Division (Lawrance and Ridley, JJ.) giving judgment for the respondents upon a case stated by the Court of Quarter Sessions for the county of Chester.

The case is fully set out in the report of the judgment of the Queen's Bench Division (ante, p. 199; 77 L. T. Rep. 244), but the facts may be more shortly stated as follows:

The question was as to the rating of certain railway lines at Stockport railway station.

To the north of Stockport railway station there are eight lines of railway, four coming from Manchester and four from Denton Junction. These eight lines merge into four about a quarter of a mile north of a viaduct.

On the south side of the station in Edgeley tunnel there are five lines which on issuing therefrom in a southerly direction splay out into eight, two going to Buxton, two to Liverpool, two to Crewe, and two to Macclesfield. Between the viaduct and the tunnel four lines of railway would be sufficient to carry all the traffic if there were no station at Stockport.

Besides these four lines and certain lines which were admittedly sidings there are other lines, numbered in the plan annexed to the case 5, 21, 23, 24, 26, 27, 34, 35, 36, 38, and 39, which were the subject of the appeal.

Line No. 5 is used for the purpose of traffic destined for or coming from the goods yard and warehouse. It is also sometimes used for standing and unloading goods waggons, but in such cases another line is left open as a means of access to the yard and by means of a turntable to the warehouse.

Line No. 21 is used for the purpose of mineral traffic coming from the south and destined for

(a) Reported by E. MANLEY SMITH, Esq., Barrister-at-Law.

Lord Vernon's coal yard, and for empty trucks returning from that yard, the trains being for that purpose pushed in and pulled out by an engine.

Lines 23, 24, 38, and 39 are used for running goods trains. This is invariably so when the four main lines are occupied or likely to be occupied by passenger trains or other vehicles. Lines 23 and 39 are also used for standing goods trains and for the standing of engines and passenger carriages, and all four lines are used for shunting. On No. 23 goods waggons are sometimes picked up or detached; sometimes the train runs through unchanged.

Nos. 24 and 38 are sometimes used for special passenger and empty traius which do not require to stop at the station.

Lines No. 26, 34, 35, 27, and 36 are used as follows:

Line No. 26 is used for local trains to discharge passengers on the up side of the station. The Carriages of such local trains when emptied are shunted into one of the bay lines numbered respectively 34 and 35 on the down side of the station, there to wait with or without engines until the time of departure thence.

Lines No. 34 and 35 are used for the reception of empty carriages as appears in the last preceding paragraph, and for standing and for making up local passenger trains for departure thence. One or more passenger trains per diem with passengers arrive in these bays, and, to avoid shunting, stand upon the same line until their departure again with passenger traffic from the same bays.

Line No. 27 is used for the reception of empty passenger trains, which stand there until they depart therefrom with passengers Such empty

trains sometimes remain there all night.

Line No. 36 is used for the departure of trains and is also used for standing of empty passenger trains without engines during the night, and which passenger trains depart from one of the main platforms on the following morning.

All the said lines numbered 5, 21, 23, 24, 26, 27, 34, 35, 36, 38, and 39 are constructed, maintained, and signalled as through lines.

The Court of Quarter Sessions decided in favour of the railway company that these lines should be treated as part of the railway directly earning profits, and not as station appurtenances, and that they should be rated accordingly, but stated a case for the opinion of the court, paragraph 16 of which was as follows: The questions for the opinion of the court are, whether for rating purposes, the lines 5, 21, 23, 24, 26, 27, 34, 35, 36, 38, and 39, or any and which of them ought to be treated as station appurtenances indirectly contributing towards the company's earnings and rateable in the same manner as the station itself, or whether those lines ought to be treated as part of the railway directly contributing towards the company's earnings.

The Queen's Bench Division (Lawrance and Ridley, JJ.) affirmed the decision of the Court of Quarter Sessions, and held that the lines in question were rateable as part of the railway directly earning profits, and not as station appurtenances : (77 L. T. Rep. 244).

The Assessment Committee appealed.

Honoratus Lloyd (with him Balfour Browne, Q.C.) for the assessment committee.-The ques